Distance selling of pharmaceutical veterinary medicinal products via the internet?

The Medicines Act (Arzneimittelgesetz) prohibits distance selling – including via the internet – of pharmaceutical veterinary medicinal products. The Federal Court of Justice (BGH) had to address the question of whether there is an objective justification for regulating distance selling of veterinary medicinal products more strictly than distance selling of human medicines, which is permitted within certain limits regulated by the Medicines Act.

Company A operates a mail-order pharmacy on the internet. Since 2004, it has offered via its website, alongside other veterinary medicinal products, the pharmaceutical veterinary medicinal product "exspot" approved for combating fleas and ticks in dogs.

The competitor sells the product "exspot" to wholesalers as well as to veterinarians and pharmacies for resale to animal owners and also advertises the product to these parties. It sees the distribution of the product by Company A as a breach of the fundamental prohibition of distance selling of pharmaceutical veterinary medicinal products regulated in the Medicines Act. In addition, the competitor considers the conduct of Company A to constitute unlawful competition through advertising measures that violate the Medicines Advertising Act (Heilmittelwerbegesetz) and issued a cease-and-desist letter with threat of penalty against Company F to immediately cease distance selling via the internet.

Court's decision
In itsjudgment of 12. 11. 2009 – I ZR 210/07,
the Federal Court of Justice (BGH) decided that the prohibition of distance selling of pharmaceutical veterinary medicinal products regulated in the Medicines Act does not apply to cases in which medication errors caused by the specific risks of distance selling create neither a health hazard to humans nor a relevant danger to the health of the treated animal. Such a danger is in principle excluded for veterinary medicinal products which are intended by design to be used only on pets not kept for nutritional purposes. To this extent, distance selling of veterinary medicinal products cannot be regulated more strictly than distance selling of medicinal products intended for humans.

Conclusion:
In this legal case, the Federal Court of Justice (BGH) has created a meaningful balance between the treatment of human and veterinary medicinal products within the framework of distance selling. Distance selling via the internet of medicinal products for pets and humans is thus in principle possible and permitted within the limits of the Medicines Act.